Posts by: Editorial Board

Mind the Gap: Obama Takes New Executive Action on Pay Equity in the Workplace

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Last week President Obama continued his administration’s push to tackle pay equity issues by taking executive action to put federal contractors’ compensation practices under greater scrutiny. On April 8, 2014, the President signed a memorandum and executive order designed to address race and gender-based disparities in compensation. The memorandum directs the Department of Labor (“DOL”) to propose a rule within 120 days requiring federal contractors and subcontractors to submit “summary data” on employee compensation by race and sex to the DOL using a “tool” to be developed by the agency. The executive order signed along with the memorandum bans federal contractors from retaliating against employees for discussing their compensation with each another in an effort to “enhance the ability of Federal contractors and their employees to detect and remediate unlawful discriminatory practices” in pay. READ MORE →

Germany: A “Permanent Temp Worker” is not the Lessee’s Employee

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Map and Compass

In Germany, many companies have resorted to utilizing temp workers through a third-party agency instead of hiring their own personnel. Temp workers typically are leased from an agency that employs the temps and assigns them to the company (lessee). This staffing model has increasingly received political criticism and judicial attention. READ MORE →

Court is (Still) in Session: Updates On Three Key Employment Cases Pending Before the United States Supreme Court

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Back on October 8, 2013, we highlighted three cases currently pending on the United States Supreme Court docket that employers will definitely want to follow. The cases address issues ranging from the proper interpretation of Sarbanes Oxley’s whistleblower provision to the breadth of Presidential NLRB appointment power, to what constitutes “changing clothes” under the FLSA.  Although decisions have not yet come down, important developments have taken place in all three cases. READ MORE →

Thank You for Your Service: The Broad Protections Granted to Members of the U.S. Military Returning to the Civilian Workforce

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People Walking

Images of American flags and proud men and women in uniform were all around last month, as they are every Memorial Day. It is a good time to reflect on the military service of so many of our fellow citizens. It is also a good time for employers to familiarize themselves with their obligations toward members of the U.S. military returning to the civilian workforce. READ MORE →

New Developments regarding Temporary Workers in Germany

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Blue Globe

German companies rely heavily on temporary workers. Due to fundamental legislative reforms in the mid-2000s, it is possible to pay temporary workers a salary which is below the salary of comparable permanent staff. Therefore, the use of temporary workers provided by HR service providers is a cost effective way for German companies to flexibly adjust their workforce to the current demand of labor. However, in recent years, several High Court decisions have strengthened the rights of temporary workers. In the last months the Federal Labor Court (Bundesarbeitsgericht “BAG”) has issued several important decisions which aim to further improve the rights of temporary workers and also affect companies using the services provided by temporary workers. German companies who employ temporary workers should be aware of these important new developments. READ MORE →

The Lesser Known Perils of Shark-Wrestling

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The British man who was filmed wrestling a shark, which threatened nearby children in the sea, whilst he was on holiday in Australia – the footage of which went global – has been sacked by his employer this week. It has been revealed that Mr. Marshallea and his wife (who has also been sacked) were on sick leave from the charity that employed them at the time of Mr. Marshallea’s heroic efforts and his employer took the view that this was a breach of trust too far.

Mr. Marshallea’s version of events is that he was off work with stress (as was his wife) and his GP had advised them that a holiday would do them good. His employer, in the dismissal letter, allegedly stated that, ‘Whilst unfit to work, you were well enough to travel to Australia and, according to recent news footage of yourself in Queensland, you allegedly grabbed a shark by the tail and narrowly missed being bitten by quickly jumping out of the way; the photographs and footage appearing in newspapers and television broadcasts.” READ MORE →

Regional Labor Court of Cologne: European Works Council Cannot Enforce its Information and Consultation Rights by a Preliminary Injunction

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Blue Globe

According to the German European Works Councils Act, the employees at companies or groups of companies with an aggregated headcount of more than 1,000 employees and at least each 150 employees in two Member States of the European Union have the right to elect a European Works Council (EWC). This representative body is located at the German parent company’s seat. It has various rights of information, either based on an agreement between the EWC and the parent company, or based on the Act if no agreement was found. READ MORE →

German Federal Labor Court Dismisses 46 Million Euro Claim for Unlawful Solicitation of Employees

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Blue Globe

The solicitation of employees by competitors is a frequent problem for companies in Germany. Many companies actively pursue a so-called “war for talents” and sometimes unlawful means are used for the purpose of soliciting employees. The loss of key employees can cause severe damage to a company. In many cases, not only expert knowledge but also confidential information and client relationships are lost. The German Federal Labor Court (“Bundesarbeitsgericht” – “BAG”) recently decided on the damage claims of a company which had lost numerous key employees due to unlawful solicitation activities of a competitor (BAG September 26, 2012, 10 AZR 370/10). The decision was eagerly awaited as the plaintiff had claimed a compensation payment of 46 million Euro for the damages caused by the massive solicitation of key employees. The BAG’s decision establishes important principles regarding the solicitation of employees and damage claims of companies who were the target of unlawful solicitation activities. READ MORE →

Discoverability of Social Networking

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Data Privacy

Two recent employment discrimination cases, though differing in their outcomes, make it clear to litigants that information posted on social networking sites (“SNS”) is fair game.

The court in EEOC v. Original Honeybaked Ham Company equated social networking sites to file folders entitled “Everything About Me.” 2012 WL 5430974, *1 (D. Colo. Nov. 7, 2012) After citing some exemplar entries from a class member’s Facebook account, the court reasoned that “[i]f all of this information was contained on pages filed in the ‘Everything About Me’ folder, it would need to be produced.” Id. at *2. The court’s analysis also included reference to the significant amount in controversy, and the high likelihood that the sites will contain relevant information (a determination made in part based on a review of pages “already obtained [from] one affected former employee[].”). Id.  In an attempt to ensure that only relevant, non-privileged material is disclosed, the court established a two-step review process involving the in camera inspection by a special discovery master and subsequent review by plaintiffs’ counsel before production to the defendant. Id. at *3.

The Central District of California, in Mailhoit v. Home Depot U.S.A., Inc., 2012 WL 3939063, *2 (C.D. Cal. Sept. 7, 2012), also determined that “[g]enerally, SNS content is neither privileged nor protected by any right of privacy.” Id.  However, while the Mailhoit court expressed its willingness to consider the grant of access to relevant content on plaintiffs’ SNS pages, the court found fault with all but one of defendant’s requests; (the requests were “not reasonably particular; “impermissibly overbroad;” “fail[] for vagueness”). Id. at *3-5.

Labor Courts in Germany extend Employer’s Rights to Monitor and Control Employee IT Devices

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In a series of recent verdicts since 2011, Higher Labor Courts in Germany have increased the employer’s scope to monitor and control employees’ use of provided company IT and to sanction breaches of contract and statutory law discovered hereby. While the protection of the employee’s privacy and right to self-determination regarding his personal data had been the focus of the jurisdiction in the past, labor law jurisdiction has now strengthened the employer’s rights of ownership (as to their company IT) and of profession. This enables employers to track unlawful action committed by their employees on electronic devices in a more efficient way and will support employers particularly in the maintenance of their business operations, in litigation procedures against employees as well as in internal company (compliance) investigations.

1. Verdict by the Higher Labor Court Berlin-Brandenburg from February 16, 2011 (4 Sa 2132/10)

Until 2011, the employer’s possibility to access and control the computer of an employee, which was furnished by the employer in order for the employee to fulfill his contractual obligations, with regard to possible breaches of law depended on whether the employer had allowed the use of such computer for business purposes only or also for private use. According to lower German labor courts and German scholars, the grant of private use of company IT qualified employers as “providers of telecommunication services” in the sense of the German Telemedia Act (Telemediengesetz; “TMG”) and German Telecommunications Act (Telekommunikationsgesetz; “TKG”) to the effect that the employers were deemed to be subject to the requirements of the “secrecy of telecommunications” (Fernmeldegeheimnis). Such secrecy of telecommunication bans the respective service provider from reviewing “the contents and the detailed circumstances” of any communication that takes place via its communication channels. Lower German labor courts and German scholars argued that, due to the grant of private use of email and internet, employers could not be treated in a different way than professional providers of telecommunication services, such as AOL or T-Mobile, as the respective communication would no longer only relate to internal affairs of the company. Instead, there would be a risk that the employer takes note of private communication as well even if he intends to check business communication only. READ MORE →